(13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:
(a) transporting persons or goods to or from a resources installation; or
(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.
(14) A resources installation shall be taken to be attached to the Australian seabed if:
(a) the installation:
(i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and
(ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or
(b) the installation:
(i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and
(ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(15) Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).
(16) For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:
(a) is in that adjacent area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that adjacent area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(17) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in an adjacent area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that adjacent area under subsection (15).
(18) A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.
(19) Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).
(20) For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:
(a) is in that coastal area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that coastal area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(21) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in a coastal area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that coastal area under subsection (19).
(22) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.
5AAA Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
5AA Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non‑citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
(1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in the migration zone; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of birth.
Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.
Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non‑citizens).
Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.
Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in a regional processing country; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of his or her birth.
Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.
Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Entered Australia by sea
(2) A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or
(ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c) the person entered the migration zone after being rescued at sea.
Excluded maritime arrival
(3) A person is an excluded maritime arrival if the person:
(a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) is a non‑citizen who:
(i) holds and produces a passport that is in force; and
(ii) is ordinarily resident on Norfolk Island; or
(c) is included in a prescribed class of persons.
Definitions
(4) In this section:
aircraft has the same meaning as in section 245A.
ship has the meaning given by section 245A (as in force before the commencement of section 69 of the Maritime Powers Act 2013).
Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1).
5AB Sentencing for offences
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.
5A Meaning of personal identifier
(1) In this Act:
personal identifier means any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face;
Note: See section 5BA.
(d) an audio or a video recording of a person (other than a video recording under section 261AJ);
(e) an iris scan;
(f) a person’s signature;
(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
(2) Before the Governor‑General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and
(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c) obtaining the identifier will promote one or more of the purposes referred to in subsection (3).
(3) The purposes are:
(a) to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and
(b) to assist in identifying, in the future, any such person; and
(c) to improve the integrity of entry programs; and
(ca) to improve passenger processing at Australia’s border; and
(d) to facilitate a visa‑holder’s access to his or her rights under this Act or the regulations; and
(e) to improve the procedures for determining visa applications; and
(f) to improve the procedures for determining claims from people seeking protection as refugees; and
(fa) to assist in determining whether a person is an unlawful non‑citizen or a lawful non‑citizen; and
(g) to enhance the Department’s ability to identify non‑citizens who have a criminal history or who are of character concern; and
(ga) to assist in identifying persons who may be a security concern to Australia or a foreign country; and
(h) to combat document and identity fraud in immigration matters; and
(i) to detect forum shopping by applicants for visas; and
(j) to ascertain whether:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
(k) to complement anti‑people smuggling measures; and
(l) to inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed or deported from Australia.
5B When personal identifier taken not to have been provided
A person is taken, for the purposes of section 257A, not to have provided a personal identifier if:
(a) the personal identifier that is provided is unusable; or
(b) the Minister, an authorised officer or an officer is not satisfied:
(i) about the integrity or quality of the personal identifier that is provided; or
(ii) about the procedure followed to obtain the personal identifier.
5BA References to photograph or other image of person’s face
A reference in the migration law to a photograph or other image of a person’s face includes a reference to a photograph or other image of:
(a) the person’s face and all or part of the person’s neck; or
(b) the person’s face and neck and all or part of the person’s shoulders.
5BB Providing photographs and other images of faces to authorised systems
(1) Subsections (2) and (3) apply if:
(a) a provision of the migration law uses the expression “authorised system”; and
(b) the provision requires a person to provide to an authorised system a photograph or other image of the person’s face; and
(c) for the purposes of that requirement, the person submits to the authorised system collecting:
(i) a photograph or other image of the person’s face; or
(ii) a photograph or other image from which the authorised system can derive (such as by cropping) a photograph or other image of the person’s face.
(2) For the purposes of the migration law, if the authorised system collects a photograph or other image of the person’s face, the person is taken to provide the photograph or other image to the authorised system for the purposes of the requirement mentioned in paragraph (1)(b).
(3) For the purposes of the migration law, if:
(a) the authorised system collects a photograph or other image from which the authorised system can derive (such as by cropping) a photograph or other image of the person’s face; and
(b) the authorised system derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the authorised system collects;
the person is taken to provide the derived image to the authorised system for the purposes of the requirement mentioned in paragraph (1)(b).
(4) When used in this section (other than in paragraph (1)(a) of this section), authorised system has the same meaning as when used in the provision mentioned in paragraph (1)(a).
5BC Providing photographs and other images of faces to Minister and authorised officers
(1) Subsection (3) applies if:
(a) the migration law requires a person to provide a photograph or other image of the person’s face to the Minister; and
(b) for the purposes of that requirement:
(i) the person provides to the Minister (the recipient) a photograph or other image from which the Department can derive (such as by cropping) a photograph or other image of the person’s face; and
(ii) the Department derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the person provides.
(2) Subsection (3) also applies if:
(a) a provision of the migration law uses the expression “authorised officer”; and
(b) the provision requires a person to provide a photograph or other image of the person’s face to an authorised officer; and
(c) for the purposes of that requirement:
(i) the person provides to an authorised officer (the recipient) a photograph or other image from which the Department can derive (such as by cropping) a photograph or other image of the person’s face; and
(ii) the Department derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the person provides.
(3) For the purposes of the migration law, the person is taken to provide the derived image to the recipient for the purposes of the requirement mentioned in paragraph (1)(a) or (2)(b).
(4) When used in this section (other than in paragraph (2)(a) of this section), authorised officer has the same meaning as when used in the provision mentioned in paragraph (2)(a).
5C Meaning of character concern
(1) For the purposes of this Act, a non‑citizen is of character concern if: